Washington state court says accused rapists cannot bear burden of proving consent

[October 31, 2014]  By Victoria Cavaliere
 
 SEATTLE (Reuters) - The Washington Supreme Court on Thursday ruled the burden of proving consent cannot fall on a defendant accused of rape, in a split decision that reversed two earlier rulings and prompted fears that dangerous offenders could avoid conviction.

The court in its 6-3 ruling reversed earlier decisions that forced an alleged rapist to establish a preponderance of evidence that a victim consented to sex. The court said such a burden violated constitutionally protected rights and also wrongly interpreted precedent set by the U.S. Supreme Court.

"When a defense necessarily negates an element of the crime charged, the State may not shift the burden of proving that defense onto the defendant," the ruling said.

"Requiring a defendant to do more than raise a reasonable doubt is inconsistent with due process principles," Justice Debra Stephens wrote, adding that doing so raises "a very real possibility of wrongful convictions."

In a dissenting opinion, Washington Supreme Court justices wrote the decision would undo years of progress in rape cases and could allow some sex offenders to go free.

"In 1975, the legislature took an important step toward justice for rape victims when it modified the laws to focus on the conduct of the perpetrator and not the victim. Unfortunately, today's decision by the majority reverses that progress," wrote Justice Susan Owens.

In issuing its ruling, the court reversed the conviction of a rape defendant identified as W.R., a minor accused of rape by another minor.

W.R.'s defense maintained the sex was consensual and he appealed his conviction saying his right to due process was violated when he was forced to present the preponderance of evidence that his accuser agreed to the contact.

"This impermissible shift in burden is not merely academic but risks compartmentalizing forcible compulsion and consent, raising a very real possibility of wrongful convictions," the ruling said.

(Reporting by Victoria Cavaliere in Seattle; Editing by Eric M. Johnson)

[© 2014 Thomson Reuters. All rights reserved.]

Copyright 2014 Reuters. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.